Date: 20120720
Docket: IMM-9476-11
Citation: 2012 FC 919
Ottawa, Ontario, July
20, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
|
|
ALIM MOHAMED
HANIFF
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
I. Background
[1]
Mr. Alim Mohamed Haniff, the Applicant in this application
for judicial review, is a citizen of Guyana who has been in Canada since 1995. Between April 2003 and December 2006, the Applicant acquired five
criminal convictions. As a result, by decision dated October 26, 2005, he was
ordered removed from Canada, on grounds of “serious criminality” under
s. 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA]. A Deportation Order was issued against him.
[2]
The Applicant appealed his Deportation Order, seeking a
stay of his removal. In a decision dated April 18, 2007, a panel of the
Immigration and Refugee Board, Immigration Appeal Division (the IAD) granted
Mr. Haniff a four-year stay of the Deportation Order on certain conditions. In
2011, the Minister of Public Safety and Emergency Preparedness (the Minister)
requested a review of the stay, alleging that the Applicant had breached
several conditions. Specifically, the Minister claimed that the Applicant had
breached the conditions of his stay in the following manner:
·
on August 28, 2009, he was convicted of impaired driving
and failing or refusing to provide a sample of his blood;
·
he did not provide proof of completion of an anger
management program, an intimate partner abuse program and a substance abuse
program; and
·
he had accumulated outstanding fines in the amount of
$3,230.00.
[3]
A review hearing was held on November 10, 2011, before a
member of the IAD (the Member). In a decision dated November 18, 2011, the
Member determined that the stay should not continue. The effect of this
decision is that the Applicant’s appeal of his removal has been dismissed and
his removal order may be acted on by the Minister.
[4]
The Applicant seeks judicial review of the decision of the
Member.
II. Issues
[5]
The issues before me on this application for judicial
review, as clarified during oral submissions, are the following:
1.
Did the Member fail to provide the Applicant with a full
and fair hearing:
a)
by permitting the late filing of evidence by the Minister,
in contravention of Rule 30 of the Immigration Appeal Division Rules,
SOR/2002-230 [IAD Rules];
b)
by curtailing the Applicant’s right to re-examine his
mother, who was the only other witness at the hearing;
c)
by unduly interfering with counsel’s questioning of the
Applicant or his mother; and
d)
by making statements that amounted to a pre-determination
of the outcome of the hearing?
2.
Did the Member fail to have regard to the best interests of
the Applicant’s young child?
III. Statutory Framework
[6]
I begin by briefly describing the statutory framework
affecting this application.
[7]
There is no dispute that the Applicant is inadmissible under s. 36(1)(a) of IRPA on grounds
of serious criminality. A permanent resident is inadmissible under that
provision if he or she has been convicted in Canada of an offence under an Act
of Parliament punishable by a maximum term of imprisonment of at least 10
years, or of an offence for which a term of imprisonment of more than six
months has been imposed. Because of the Applicant’s inadmissibility, pursuant
to s. 45(d), the Immigration Division (the ID) was obliged to issue a removal
order (in this case, the Deportation Order).
[8]
Under s. 63(3) of IRPA, an admissibility decision of
the ID can be appealed to the IAD. After considering the appeal, the IAD,
pursuant to s. 66, shall order one of the following: (a) “allow the appeal in
accordance with section 67”; (b) “stay the removal order in accordance with
section 68”; or (c) “dismiss the appeal in accordance with section 69”.
[9]
Section 68 of IRPA deals with staying removal
orders. Pursuant to s. 68(1), in order to stay a removal order, the IAD must be
satisfied, taking into account the best interests of a child directly affected,
that sufficient humanitarian and compassionate considerations warrant special
relief in light of all the circumstances of the case. In granting a stay of a
removal order, the IAD “shall impose any condition that is prescribed and may
impose any condition that it considers necessary”.
[10]
Once the IAD has stayed a removal order it may, at any
time, and on its own initiative or on application, reconsider the appeal (s.
68(3)). Under s. 69(1), the IAD shall dismiss an appeal if it does not allow
the appeal or does not stay the removal order.
IV. Standard
of Review
[11]
As determined by the Supreme Court in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, the
standard of review of a decision of the IAD is reasonableness. Justice Binnie described
this standard as follows at paragraph 59:
Reasonableness is a single standard that takes its colour
from the context. One of the objectives of Dunsmuir was to liberate
judicial review courts from what came to be seen as undue complexity and
formalism. Where the reasonableness standard applies, it requires deference.
Reviewing courts cannot substitute their own appreciation of the appropriate
solution, but must rather determine if the outcome falls within “a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, at para. 47). There might be more than one reasonable
outcome. However, as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to a reviewing court to substitute its own view of a preferable outcome.
[12]
The Supreme Court’s guidance in Khosa is of
particular assistance since that case dealt with a person similarly situated to
the Applicant in the case at bar. In Khosa, a young man had been
determined to be inadmissible to Canada for serious criminality and the IAD had
dismissed the appeal brought pursuant to s. 67(1)(c). The task of the IAD was explained
by Justice Binnie at paragraph 57 as follows:
In recognition that hardship may
come from removal, Parliament has provided in s. 67(1)(c) a power to
grant exceptional relief. The nature of the question posed by s. 67(1)(c)
requires the IAD to be “satisfied that, at the time that the appeal is disposed
of . . . sufficient humanitarian and compassionate considerations warrant
special relief”. Not only is it left to the IAD to determine what
constitute “humanitarian and compassionate considerations”, but the
“sufficiency” of such considerations in a particular case as well. Section
67(1)(c) calls for a fact-dependent and policy-driven assessment by the
IAD itself.
[Emphasis added]
[13]
The issue of the procedural fairness of the hearing before
the Member is not reviewable on a standard of review; either the hearing was
fair or it was not.
V. Analysis
A. Issue
#1: Fairness
[14]
In support of his argument that the hearing before the
Member was unfair, the Applicant raises four alleged problems that, in his
view, resulted in an unfair hearing.
[15]
The overarching concern that I have with these arguments is
that, during the hearing, counsel for the Applicant raised none of the problems
now alleged. At no time did the Applicant or his counsel attempt to question
the Member on his actions, seek an adjournment or bring a motion for the Member
to recuse himself. It is incumbent on a person seeking to overturn a decision
on this basis to bring forward any alleged unfairness or bias at the first
opportunity (see e.g. In re Human Rights Tribunal and Atomic Energy Can
(1985), [1986] 1 FC 103 (CA), 24 DLR (4th) 675; and Yassine
v Minister of Employment and Immigration (1994), 172 NR 308 at para 7 (FCA),
27 Imm LR (2d) 135). As pointed out by Justice Near in Zhong v Canada (Minister of Citizenship and Immigration), 2011 FC 279 at para 22, [2011] FCJ No
323 (QL):
Failure to raise a timely
objection to a perceived breach of natural justice is considered by the
jurisprudence of this Court to be an implied waiver of any such breach that
might have occurred (Kamara v. Canada (Minister of Citizenship and
Immigration), 2007 FC 448, 157 ACWS (3d) 398 at para 26).
[16]
In response, the Applicant argues that his counsel was
likely “intimidated” by the Member. This is simply not an excuse for counsel
permitting an allegedly unfair hearing to proceed.
[17]
This is sufficient to dispose of this issue. However, a
review of the allegedly unfair actions demonstrates that, either singly or
cumulatively, they do not demonstrate that the hearing was unfair.
[18]
The Applicant’s first concern relates to a package of
documents faxed by the Minister to the IAD and the Applicant (the November 4
Package) six days prior to the commencement of the hearing. The November 4
Package calls into question the credibility of the Applicant’s testimony with
respect to his girlfriend (AR). The Applicant acknowledges that the IAD
Rules permit the late filing of evidence in the Member’s discretion but
argues that the Member erred by admitting this particular evidence. I do not
agree.
[19]
At the hearing, counsel for the Applicant objected to the
admissibility of the November 4 Package on the basis that: (1) he had only
received that document six days before the hearing; and (2) it was not directly
relevant to the Applicant. The Member considered the arguments of counsel and
held that the documents were relevant and had probative value. The Member
further explained that the Applicant would have an opportunity to address the
evidence.
[20]
In addition to the fact that, by not objecting, the
Applicant had impliedly waived his objection, I observe that counsel for the
Applicant received the documents six days prior to the hearing. Thus, counsel
and the Applicant had six days to prepare a response. Indeed, the transcript of
the hearing reveals that the Applicant was able to address this evidence when
questioned by the Minister’s counsel, and that he had in fact reflected on the
impugned evidence and discussed it with AR prior to the hearing. It should also
be noted that the Applicant appears to have attempted to conceal this evidence
on direct examination, as he suggested that the only obstacle preventing him
from marrying AR was his need to develop personally. However, in response to a
question from the Member, the Applicant conceded that “the real reason” he
cannot marry AR is that she is married to someone else.
[21]
The acceptance of the November 4 Package into evidence was
not a breach of natural justice.
[22]
The Applicant’s second argument is that the Member breached
the rules of procedural fairness by rushing the hearing. Once again, I do not
see any error in the manner in which the Member acted.
[23]
Aside from the Applicant, the Applicant’s mother was the
only witness to testify at the hearing. The Applicant submits that the Member contravened
the rules of procedural fairness by curtailing or rushing his counsel’s
questioning of his mother. After seven pages of questions from counsel for the
Applicant and nearly seven pages of questions from the Minister’s counsel,
counsel for the Applicant indicated that he had “a few questions” on
re-examination. The following brief exchange then took place between counsel
for the Applicant and the Member:
MEMBER: Make
if brief counsel because we are coming to twelve. We have had a lot of
questions and answers in this hearing so far and I need to hear submissions. So
I want to finish by 12:00. I need to finish by 12:00 actually.
COUNSEL: I
will be brief. [….]
[24]
Counsel for the Applicant then proceeded to ask the
Applicant’s mother four questions. After the Member refused to accept documents
regarding the purchase of the family home into evidence, counsel for the
Applicant agreed to proceed to his submissions:
MEMBER: All
right counsel’s submissions now.
COUNSEL: Yes.
[….]
[25]
While rushing on the part of a tribunal may deprive a party
of a fair hearing (see e.g. Mazouni v Canada (Minister of Citizenship and
Immigration), 2003 FC 1519 at para 8, [2003] FCJ No 1927 (QL)), that does
not appear to be the case here. Counsel was not prevented from re-examining the
witness. The Applicant has not pointed to any evidence which he would have
adduced had he been given additional time.
[26]
In these circumstances, the Member’s statement that counsel
should be “brief” did not prevent the Applicant from receiving a full and fair
hearing or breach the principles of natural justice or procedural fairness.
[27]
The Applicant further argues that he was denied a full and
fair hearing because the Member “seemed to ‘prosecute’” the case by
interrupting his counsel’s examination in chief to “interject his own line of
questioning”. Once again, I do not agree.
[28]
A review of the transcript does not demonstrate that the
Member’s questioning was intrusive or that the Applicant was prevented, by such
interruptions, from presenting his case.
[29]
The decision of Kumar v Canada (1987), [1988] 2 FC 14 (CA), 81 NR 157 [Kumar], upon
which the Applicant relies, is distinguishable. In Kumar, above at 18, the
Court of Appeal found that the applicant had been denied natural justice as a
result of the chairman’s “gross interference with the orderly presentation of
[his] case”. In reaching that conclusion, the Court of Appeal noted that the
chairman had made several “intrusive and intimidating” interjections, including
the statement that he considered cross-examination to be unnecessary because
“This is one of the most ridiculous cases I have ever heard in my life” (Kumar,
above at 16). The Member’s interjections in this case bear little resemblance
to those at issue in Kumar: They were posed in an orderly fashion, did
not curtail any of the Applicant’s answers, and in no way dominated the
examination in chief.
[30]
In my view, the Member’s questioning does not give rise to
a denial of natural justice that would justify intervention by the Court.
[31]
Finally, the Applicant argues that the Member came to the
hearing having pre-determined the matter. This, argues the Applicant, resulted
in an unfair hearing. The Applicant submits that the following statement, made
by the Member during counsel’s closing submissions, indicates that the Member
had pre-determined the result:
COUNSEL: [….] Sir I am respectfully submitting that this appeal
should be allowed or in the alternative this stay should be extended.
MEMBER: Honestly I do not see how you can reasonably submit
that the appeal should be allowed. I mean that is not… I do not usually comment
on people’s submissions when I make them but I expect people to make
responsible and reasonable submissions. There has been several serious breaches
here. Non-reporting, a new offence, two counts actually of convictions. How can
you possibly say in the light of all of this that I should allow the appeal
outright. I do not understand that. I do not understand the basis of that
submission.
[32]
The Member, faced with an appeal by the Applicant, stated
at the opening of the hearing that there were three possible outcomes: (1) he
could allow the appeal and effectively vacate the Deportation Order; (2) he
could continue the stay on conditions; or (3) he could dismiss the appeal. By
his comments – both at the commencement of the hearing and as noted above at
the end – it appears that the Member foreclosed the possibility of allowing the
appeal. Given the extent and nature of the Applicant’s breaches of the
conditions of his stay, the Member’s statement was not surprising or
unreasonable. Nothing presented in evidence changed the fact that the Applicant
had a lengthy criminal history and had seriously breached the conditions of his
stay. However, what is more important is that the Member clearly did not
foreclose the possibility of continuing the stay and proceeded, after the above
comment, to listen attentively to counsel’s submissions on that possibility.
[33]
The transcript demonstrates that, when the Member set out
his views on the possibility of allowing the appeal, counsel accepted that
result without question and carried on to argue the Applicant’s alternative
position. On these facts, there was no error.
[34]
Overall, based on my reading of the history of this matter
and the transcript of the hearing, I conclude that the hearing was conducted in
accordance with the rules of procedural fairness. The four examples cited by
the Applicant, when read in the context of the entire record, do not lead me to
doubt the fairness of the proceeding.
B. Issue
#2: Best interests of the child
[35]
Although he does not reside with his child, the Applicant
is father to a young boy in Canada. The Applicant asserts that the Member
failed to take the best interests of his son into account when determining
whether the stay should be continued.
[36]
As required by s. 68(1) of IRPA, the IAD must take
into account the best interests of a child directly affected by its decision to
stay a removal order. It is well-established, however, that the interests of a
child are not determinative; the IAD must examine all factors relevant
to the stay. Those factors are referred to as the “Ribic factors”, as
first set out in Ribic v Canada (Minister of Employment and Immigration),
[1985] IABD No 4 (QL) [Ribic], which was
approved by the
Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84. The weighing of those factors is
the responsibility of the IAD. As noted above, the task of the IAD was
described by Justice Binnie in Khosa, above at paragraph 57, as being to
“determine what constitute ‘humanitarian and compassionate
considerations’”, as well as “the ‘sufficiency’
of such considerations in a particular case [...]”.
[37]
In this case, the Member examined the facts relating to the
Applicant’s child; no evidence was ignored. The Member concluded that “it is in
the best interests of the [Applicant’s] son to have both of his parents in Canada; however, it is not determinative”. The Member then proceeded to weigh this positive
factor along with the other Ribic factors. I do not see how the Court
can intervene in the Member’s assessment of the child’s interests or his
weighing of the Ribic factors.
VI. Conclusion
[38]
For these reasons, the application for judicial review will
be dismissed. Neither party proposed a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
Email this Content